Supreme Court: When in a dispute between a married couple, a 9-year-old child was sought to be used as a ‘pawn’ to prove the allegation of adultery against the wife, the bench of V Ramasubramanian and BV Nagarathna, JJ has held upheld the right to privacy of the child and has held that an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.
While Nagarathna, J wrote a detailed opinion for the Bench, Ramasubramanian, J wrote a concurring opinion, echoing Nagarathna, J’s opinion but stressing on two specific issues relating to adverse inference against the wife and the rights of the child.
Nagarathna, J observed that ‘Illegitimate’- a term that brands an individual with the shame of being born outside wedlock, casts a shadow on one’s identity.
“Times change and attitudes may change, but the impact of growing up with the social stigma of being illegitimate, does not.”
Hence, the Courts must hence be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimisation of the child would result in rank injustice to the father.
Ramasubramanian, J stressed that the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the husband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.
“To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.”
The marriage of the appellant with the respondent took place on 23.11.2005.
The first child was born on 21.12.2009 and the second child was born on 17.7.2013.
The respondent-husband claims to have found out the alleged adulterous conduct of the appellant, on 14.9.2016, (3 years after the birth of the second child) when he accidentally stumbled upon the WhatsApp messages in the mobile phone of the appellant.
Then the respondent privately had a DNA test conducted on the second child, in November 2016, from DNA Labs India.
The respondent then filed a petition for divorce on the ground of adultery, in June 2017.
During the pendency of the proceedings for divorce, the respondent moved an application in November 2020 seeking a direction to subject the second son to DNA testing at the Government Central Forensic Laboratory.
The Family Court allowed the application filed by the respondent-husband and the Bombay High Court also affirmed the same.
This led the wife to come up with the above appeal, contending that under Section 112 of the Indian Evidence Act, 1872, birth during marriage is conclusive proof of legitimacy and that no evidence to disprove the same can be allowed by the Court. This is especially so when the parties to the marriage admittedly had access to each other during the time when the child could have been begotten.
Issue before the Supreme Court
The Court was posed with the question as to how a Court can prevent the law’s tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques.
Section 112 of Evidence Act: Presumption of legitimacy of child vis-à-vis “access” or “non-access” of sexual relationship
Since Section 112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child.
Further, “access” or “non-access” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception.
“The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party.”
Hence, a child proved to be born during a valid marriage should be deemed to be a legitimate child except where it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten or within 280 days after the dissolution of the marriage and the mother remains unmarried, that fact is the conclusive proof that the child is the legitimate son of the man.
However, if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Thus,
“Where the husband and wife have co-habited together, and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112.”
Further, if a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. What would be proved, is adultery on the part of the wife, however, the legitimacy of the child would still be conclusive in law. Hence, the conclusive presumption of paternity of a child born during the subsistence of a valid marriage cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception.
Section 114 of Evidence Act: Adverse Inference against wife on refusing to subject the child to DNA Test
A mix up of Section 112 and Section 114 is not possible as they both fall under different compartments. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving the same. The only escape route or emergency exit available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section 114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112.
The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it.
Further, a person can refuge under Section 114 only once the three stages are met:
(i) consideration by the Court, of the question whether to order DNA test or not;
(ii) passing an order directing DNA test, after such consideration; and
(iii) the decision of the wife to comply or not, with the order so passed.
Hence, the husband should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h).
Further, an adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her.
“By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.”
Use of DNA profiling technology as a means to prove adultery
A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise, namely:
i. DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.
iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.
The right of children not to have their legitimacy questioned frivolously in Courts of Law
While in India, parents are presumed to be the decision makers for their children, children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses.
“Genetic information is broadly understood as shedding light on a person’s essence, as going to the very heart of who he/she is. That kind of intimate, personal information, which is so highly valued in our society, is precisely what the law protects in the right of privacy, which extends even to children.”
The DNA test results can cause not only confusion in the mind of the child but a quest to find out who the real father is and a mixed feeling towards a person who may have nurtured the child but is not the biological father. Not knowing who one’s father is creates a mental trauma in a child. One can imagine, if, after coming to know the identity of the biological father what greater trauma and stress would impact on a young mind.
“A child should not be lost in its search for paternity. Precious childhood and youth cannot be lost in a quest to know about one’s paternity.”
Further, no woman, particularly, who is married can be exposed to an enquiry on the paternity of a child she has given birth to in the face of Section 112 of the Evidence Act subject to the presumption being rebutted by strong and cogent evidence. This wholesome object of Section 112 of the Evidence Act conferring legitimacy on children born during the subsistence of a valid marriage, is to be preserved.
Eminent necessity to conduct DNA test in Divorce Proceedings in the case at hand
If the paternity of the children is the issue in a proceeding, DNA test may be the only route to establish the truth. However, the present was not a case where a DNA test is the only route to the truth regarding the adultery of the mother. The respondent-husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant. Therefore, the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant.
Further, no plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of the child.
Conclusion and Cost
The Court set aside the orders of the Family Court as well as the High Court and directed that a cost of Rs.1 Lakh be paid by the respondent to the appellant within a period of one month from the date of the order.
[Aparna Ajinkya Firodia v. Ajinkya Firodia, 2023 SCC OnLine SC 161, decided on 20.02.2023]
Judgment authored by: Justice BV Nagarathna
Concurrent opinion by: Justice V Ramasubramanian
Advocates who appeared in this case :
For appellant-wife: Senior Advocate Huzefa Ahmadi;
For Respondent-husband: Senior Advocate Kapil Sibal.